from the make-it-stop dept

Let's go back just a few months to remind you about two stories that seem fairly unrelated.

Story one: at the very end of last year, we wrote about the ridiculousness of CBS and Paramount suing the makers of a Star Trek fan film on the basis of that fan film actually looking like it was going to be good. The key issue, not surprisingly, was about money. Because this fan film had raised over $1 million from crowdfunding, suddenly it must somehow be illegal.

Story two: a few months earlier, in trying to better explain to people just how crazy CAFC's ruling regarding copyrighting application programming interfaces (APIs) was, we discussed Charles Duan's excellent argument that noted that if such a ruling stood, merely using Klingon could be copyright infringement. The basic argument was that an API is a "created language." But could you imagine a situation in which the creators of such a language would claim that merely speaking it was infringement.

Well, welcome back to the present, in which Paramount and CBS's lawyers are now claiming that part of the reason why the fan film infringes is because of its use of Klingon. As first noted by Eriq Gardner at THR, Esq., the lawyers for the fan film had responded to the original lawsuit by pointing out that nothing in the lawsuit showed any specific thing that they were infringing on. And that's a problem, because of that old idea/expression dichotomy. You're only supposed to be able to infringe by copying the actual "expression," not just the general idea. And, thus, we get the amended complaint, in which the lawyers for Paramount and CBS desperately scramble to try to come up with just about anything that they can claim was infringed upon. And thus, we get... Klingon. The amended complaint basically argues that anything similar to Star Trek is copyright infringement, including characters, races, places, costumes, plot points, spaceships, logos and... language. Yes, including Klingon:

But, that's hardly all. Paramount and CBS literally claim that using any of the following terms are infringing: "beaming up," "transporters," "warp drive," "stardate" or "starfleet" or "phasers." Really.

To claim making use of words or phrases like that, which certainly remind people of Star Trek, is by itself infringing seems crazy. Ditto for claiming that merely using Klingon is somehow infringing. But, really, when you're throwing everything at the wall, you're going to throw some really stupid shit. How about this one: it's infringing because it has the same "mood and theme" and that's as a "science fiction action adventure."

Even things like the fact that the Klingon logo is similar is called out:

And there are a lot of complaints about costume similarities, starting with a "uniform with a gold shirt" with a "particular type of collar":

Or uniforms with a "cowl neck." Or, "triangular medals on uniforms." Really.

Believe it or not there's a lot more in there. I'm just highlighting a few. And a bunch of these it's difficult to believe are actually protected by copyright. General similarities in "mood and theme" are nowhere near copyrightable. Costumes, which make up a bunch of the claims, are (as we've discussed in the past) considered by the US Copyright Office as "useful articles" and not subject to copyright protection.

Clearly, the lawyers at Paramount and CBS are trying to argue that by copying many of these non-copyrightable elements, all together, that somehow magically makes it copyright infringement. And, you never know. Courts have been persuaded by these kinds of arguments in the past. And, of course, no one denies that this is clearly an attempt to build a "Star Trek" fan film. So it's obviously based on Star Trek. But there's a real issue about whether or not there really is infringement here, and by throwing absolutely everything into the filing, even things that are clearly not even remotely covered by copyright, it really makes Paramount/CBS look extremely desperate.

Reader Comments

We no longer have any common shared culture. In it's place we have corporate owned entertainment vehicles for which we must forever pay for every viewing or interaction. We cannot modify, enrich, build upon nor share these faux cultural artifacts.

The sad thing is that most people just accept this as the proper way of things. They expect to pay for every cultural interaction, they expect to have no control over their own devices or media and they expect to have no freedom to modify or build upon anything.

Corporations are only getting more powerful. So things will continue to get more restrictive and less open. We the people are now just consumer drones instead of culturally active citizens.

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Hmm, tell that to the average 6 yr old running around the house pretending to be Spiderman.

How long can it be before the Entertainment Industries call for the age of criminal responsibility to be lowered? Yet one more reason not to expose kids to Hollywood or TV (purely in the spirit of Thinking Of The Children and Keeping Them Safe of course).

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The MAFIAA probably think that if he/she is wearing a costume (with footies) then it is OK. But if it is entirely in their mind, then their parents should deeply apologies for such extensive omissions in parenting and report their own children and deliver them to re-education camps, at the parents expense of course.

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@binko-EXCELLENT points, which show -once again- how they directly and indirectly work AGAINST the furtherance of culture (such as it is)...however, i would take issue with 'most people accept' that the present draconian copyright/trademark/patent/etc laws are 'just the way it is'...in rebuttal:A. 'most' people don't know shit about shit, especially when it comes to copyright, etc...

B. *some* may know it is a morass and there are all kinds of restrictions, etc; but *probably* NOT what they are, because, WHO DOES ? ? ?

C. very few have read up on the practical ins-and-outs of the law, if not the technical aspects, etc, that a number of writers and readers here who follow these issues closely may know about... (again, the complexity is such that specialized lawyers in the field can argue both sides against the middle, and reverse it next week to suit the application... how is a mere layperson to navigate such troublesome legal waters ?)

D. on the other paw, i think it would surprise just about No One that rich and powerful entities/people get the long end of the stick, and the poor get the short end (on their head)...funny how the system is actually designed that way...just a simple fact of nature, i guess...immutable and 100% organic...nothing to see here...

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^THIS. I'm not even joking, the frenzied, bug-eyed responses I get from some copyright maximalists, who cower like shopkeepers brandishing shotguns during a riot at the very idea that someone might experience or reference their work without their express permission, really does remind me of those robes-and-hoods wack-a-do cults you see in horror movies. For the greater good.

Re: Re: A Little Fair Use Here, A Little Fair Use There ...

Ah, but the secret hidden mystery of copyright as property is made known but to the few that the many may be kept in the faith, or something.

Unbelieving infidels alone see the parts about the monopoly privileges coming to an end at some point, or only covering certain aspects of a work. 'Tis the Enlightened and the wise to whom the sacred knowledge is revealed: copyright is eternal. Immortal. The riches of the property rights thereof are granted unto those who strive to enlarge and increase it from everlasting to everlasting.

Outside are the pirates, the grifters, and the heretics who cling to the Constitutional definition. They will lie forever in darkness where there is wailing and gnashing of teeth.

It's only make believe

"CBS Television Studios owns the copyright on the official dictionary and other canonical descriptions of the language. While constructed languages ("conlangs") are viewed as creations with copyright protection,[citation needed] natural languages are not protected, excluding dictionaries and/or other works created with them. Mizuki Miyashita and Laura Moll note, "Copyrights on dictionaries are unusual because the entries in the dictionary are not copyrightable as the words themselves are facts, and facts can not be copyrighted. However, the formatting, example sentences, and instructions for dictionary use are created by the author, so they are copyrightable."[6] Whether constructed languages can be copyrighted was tested in court in the example of Loglan and its derivative Lojban.[citation needed]"

Sorry, but...

Much as it pains me to say so, Paramount is right. You cannot appropriate their character - a Klingon - any more than you can appropriate a character and write a book about Harry Potter, boy wizard (or boy wizard Perry Potter, or Harry Potterson). In any such case, you are building on and taking the effort that someone else (in this case Paramount) went through to make these elements part of our culture. Even if we had the 70 years (or life plus 50) these elements would not be public domain. Play with Sherlock Holmes and Happy Birthday instead... and dream of what you will do with Steamboat Willy.

The gold shirt or medals or transporter by themselves do not necessarily constitute appropriation - but in its entirety this is essentially what the movie is. It is an appropriation of Star Trek without permission or paying royalties. This is the very essence of what copyright was designed to prevent.

I can't make my own Batman or Superman movie either; but someone can write a movie "Hancock" about a superhero hat is not a bat or Kryptonian...

I'm reminded of the story of Charles Dickens, fighting whack-a-mole in the early days of mass publishing; as he fought and went bankrupt trying to stop fly by night operators from simply printing copies of his "Christmas Carol". One had the temerity to insist that he'd made a few changes to make thebook less depressing, thus it was an original work. But, like all the modern variations post-copyright, all they were doing was selling someone else's tale as their own.

Re: Sorry, but...

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you are building on and taking the effort that someone else (in this case Paramount) went through to make these elements part of our culture

Simple question: what is the harm done by that? (Secondary question: how does one "take" another's effort?)

Even if we had the 70 years (or life plus 50) these elements would not be public domain

Er, I'm not sure precisely what you're saying here. That even once something enters the public domain, its constituent characters do not? That's not true and if it were, it would be disastrous...

It is an appropriation of Star Trek without permission or paying royalties. This is the very essence of what copyright was designed to prevent.

Well no, not really. Copyright was designed to promote creation of new works, not block them. And appropriation art wasn't really on anyone's radar in the early history of copyright - the primary concern was the wholesale republishing of others' completed works. Meanwhile, transformative appropriation art is one of the key things fair use exists to protect - and while it only does so with middling success (and almost no success in the world of music), many appropriation artists have still been found not to be infringing. There's plenty of debate to be had on where the line should be drawn, and even more uncertainty as to where it actually is drawn, but it's clear that preventing appropriation art is hardly the "very essence" of what copyright was designed to protect.

I'm reminded of the story of Charles Dickens, fighting whack-a-mole in the early days of mass publishing; as he fought and went bankrupt trying to stop fly by night operators from simply printing copies of his "Christmas Carol"

Okay so... no. You have got that story entirely wrong. Charles Dickens *successfully* sued people for copying the book, and they declared bankruptcy, which somewhat unfairly saddled Dickens with their legal fees. But even that didn't make a dent in his money. Though he started his life in poverty, his writing made Dickens fabulously wealthy and an international celebrity. He was touring America like a movie star the year before the Christmas Carol debacle, and buying a huge estate in Kent a few years after. When he died, his estate (adjusted for inflation) was worth approximately $9-million.

Please let's do away with this myth that "piracy" bankrupted Charles Dickens, one of the most successful authors of his age and all time.

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And regarding the Dickens example... that's the whole point: The fly-by-nighters were illegally selling exact copies of his complete work -- that's what was covered by copyright, and that's why it was illegal. If they were selling a new work in which Ebenezer Scrooge flew the Cratchits to the south of France for a holiday -- even if it were clearly derivative -- that wouldn't have violated copyright.

Re: Sorry, but...

The gold shirt or medals or transporter by themselves do not necessarily constitute appropriation - but in its entirety this is essentially what the movie is. It is an appropriation of Star Trek without permission or paying royalties. This is the very essence of what copyright was designed to prevent.

You know what I always say to somebody who claims to be against cultural "appropriation", whether it be in the form of portraying/sampling everything from rap music to Japanese Kimono? It's this: when you protest something like this, deciding what is "culturally appropriate" is the very thing you are trying to do, not them.

I don't find it a coincidence that copyright's core mantra dating all the way back to its conception in the 1600s has very much in common with the petty social justice warrior movements of today, plaguing the minds of the naive and turning many decent folk away from universities. And not just that. Back in the 50's and 60's communists like Sam Aaronovitch protested the capitalist "appropriation" of American comics seeping their way into British cultural life in place of what should have been purist socialist ideology. In other words, unauthorised forms of culture were to be resisted simply for being alien, in place of more appropriate appropriation.

There is a reason why those of us aligned with Thomas Paine, 18th century liberal radicalism and freedom of expression are good at seeing through these things. Though I do wish most on my side would see the connection with the problems of copyright's right to decide what culture is "appropriate" too.

It goes right back. When things like the Inquisition and the Dark Ages were afoot every bit of blasphemy could be pinpointed as an equivalent of morons killing each other based on what was culturally appropriate for Jesus and the like. I came to realise that whenever I criticised this solipsistic concept of ownership of expression instead of freedom of expression in copyright circles, I often found I would say copyright believers were in effect wanting blasphemy laws protecting their work from being defamed, wich in any other context would be seen for the transparent prior-restraint tripe that it is, which would logically extend to silencing critics of the work too since they too could sway the culture in the direction outside of the artist's "permission". Yet copyright squares the circle and pretends that the logic doesn't extend that far for a reason I've yet to hear. I was not, and am not, wrong to make this comparison.

Wait... didn't these guys use the kickstarter money to give themselves a salary and to help jump start their own film production venture? So, they are using an established IP to make money outside the normal channels - right? While some of the arguments from the holder seem to stretch reality, it's not like either side is the "good guy" or "oppressed."

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I am against current copyright laws and what it has done to our society but in this case I am on Paramount's side. I think it is a great idea to use kickstarter to create fan fiction, as long as it was non profit fan fiction. They are now using the Star Trek universe to create fan fiction that lines their pockets. It was probably what kicked the lawsuit into gear in the first place. Fanfiction has been allowed before but it was completely non profit. They took some of the money that was from the kickstarter to pay themselves and all of a sudden it is no longer a fun fan fiction project but a for profit venture. Now paramount is going to hit them with every single photon torpedo to drag out the lawsuit and empty their pockets. Yes, some points seem a bit ridiculous but that is probably the point. I am sad to see the fan fiction hit like this but I have to side with Paramount on this case.

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Don't miss understand that I think our current copyright is completely broken but I was hoping that this fan video might be a bridge to help our broken copyright. When dealing with large amount of money, extra care needs to be taken especially when dealing with copyright. Money changed the relation that fan fiction videos had with the studio and if the first release was able to show that this method is possible, then more might have been able to continue in the future. I could be entirely wrong in this, but this is what I concluded on why they were targeted compared to other fan made video.

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I don't deny that they are probably being targeted because of the money — but above you seem to be asserting that this is appropriate, and the fact that they are making money does indeed somehow make this project more wrong or immoral. That's what I don't agree with.

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Wait... didn't these guys use the kickstarter money to give themselves a salary and to help jump start their own film production venture? So, they are using an established IP to make money outside the normal channels - right?

So? Copyright carves out the limited (remunerable) rights granted to the creators of a work in return for enriching arts and science.

They don't get to decide that they did not want to enrich arts and science after all.

That's not the deal. It is spelled out just what part of the change their contribution makes to the state of art they are granted the right to cash in on.

It's not everything. For copyright, it's the literal expression they have given their ideas. Not the ideas themselves.

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You know, fan works are generally justified under fair use. Fair use is a constitutional right,* and it's a multi-factor test, not just "Profit, yes/no?" So there's a constitutional right to use established IP to make money as long as the other factors sufficiently favor fair use. If that right's being suppressed by baseless lawsuits—and I'm not saying it is, because I haven't fully examined this particular case—then yes, I consider that oppression by someone with enough time and money to throw around baseless lawsuits.

*Which is to say that it is the expression of the limitation in the Copyright Clause.

Paramount Forgot One

Certain elements in Prelude to Axanar are derived from the exact same sources that elements of the Star Trek universe are derived from. It should be obvious to any court in the land that when a big Hollywood studio derives content from the zeitgeist of a particular genre, it's an "homage", whereas when an independent studio does it, it's a craven "ripping off".

Paramount is right...

Actually, they're not right, unless they themselves own up to the copyright infringement they are guilty of in the unauthorized reuse of fan generated Klingonese.

Personally, I call for the boycott of all things Star Trek. (something a lot easier to do, considering the exceptionally poor plots in most of the Star Trek movies produced -- a personal opinion, of course)

It sounds like...

Clearly infringing...

So this guy takes some elements from star trek, goes to kickstarter, fetches some millions of money from star trek fans simply because star trek is so popular, and then got sued by paramount? Sounds pretty valid case of copyright infringement.

When you're creating something on your own, relying on popularity of someone elses product is always very questionable. If you do that, you're just taking advantage of someone elses property, and trying to make money of someone elses work. Think of it this way. What would happen if they just didn't use star trek's elements in their movie? The star trek fans would no longer vote for them in kickstarter, and they wouldn't get any money. So all the money they received are coming from star trek's popularity, not based on what they do themselves. Clearly infringing.

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> Now, a simple question: who has lost what as a result of this exchange?

It's very simple case. We require originality of products to make sure we have various kinds of products available, instead of 2 million copies of star wars ripoffs. When products are competing against each other, products that ripoff someone elses elements are not evaluated fairly in the marketplace, instead someone elses popularity is attached to them. Thus the competition breaks in such cases, and products are evaluated wrong. This guy got 1 million dollars from kickstarter, and when other (more decent people) try to do the same, they get 20 dollars from kickstarter. Would you believe his movie project is worth 1 million dollars because of something that team did excellently. Compare it to all the other kickstarter projects? Why was this project chosen to be special one, worthy of 1 million? Maybe because it just ripped off something very popular and this skewed the evaluation that projects gets in the marketplace..

It is very important that projects are evaluated fairly in the marketplace. Otherwise you cannot say to people whose projects were rejected that the evaluation is working correct.

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Just what are you afraid of? A bit of competition? Can't compete on quality? Someone else might have an idea better than yours and that will take away your pixie dust? A measly million dollar production might be better than your hundreds of millions of dollars productions? Think that people who go see the fan flick might not come and see your next piece of crap?

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It seems to me like you're blending copyright and trademark together.

I by no means think people should be able to freely claim they are making an official Star Trek movie, or writing an official Harry Potter story. That would indeed create the marketplace confusion you fear, essentially tricking consumers into buying something not simply because they like the fictional world it takes place in but because they have existing faith in who they believe to be the creator.

But unofficial creations harm no one, whether or not they make money. Star Trek fans are well aware that this is an unofficial production that is not sanctioned by the people in control of the Star Trek IP. Based on that, they look at what's being offered and decide for themselves whether they think it will be something they'll like, and decide for themselves whether to back it. Indeed, Star Trek fans are quite sensitive about the universe and are likely to give even more scrutiny than usual to a proposed fan project! Nobody has been tricked. There is no distortion of the marketplace simply because one thing is built on top of another. They are leveraging the existing fanbase of the Star Trek universe and the fact that those fans want more Star Trek and haven't been entirely thrilled with what the official creators have been giving them for some 20 years now. They are offering to create an entirely original work that includes many ideas, themes and settings from Star Trek — and those things are not supposed to be copyrightable. To the degree that courts have treated them as copyrightable, I think that's a problem, because I simply don't see what damage the reuse of them does.

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> There is no distortion of the marketplace simply because one thing is built on top of another.

There's two important things that need to happen, if you build on someone elses work. You need to have license to the work in question. Somehow they missed that. Such license might cost significant amount of money in case of star trek, given that they spent billions to create it. Also, good projects are building yet another layer on top of the existing work, usually in such way that original elements are the main thing visible, instead of relying on someone elses popularity. Really big issue in this case is that there's significant chance that they received their money simply because Star Trek worked hard for 50 years, not because their 1 movie project is so amazing.

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But unofficial creations harm no one, whether or not they make money.Let's look at a few facts:Paramount is releasing "Star Trek Beyond", an offical Star Trek movie with the director of "Fast and Furious". This movie looks like it will be full of action, which may or may not appeal to Stra Trek fans."Prelude to Axanar" has raised over a million dollars on Kickstarter. This shows that Star Trek fans want and support this kind of movie.

To put on a conspiracy cap for a minute...Who's being harmed? I would think Paramount is jealous that this fan film is getting more acceptance in the fan community than their official movie. AND the "Anaxar" people are showing that it's possible to make a quality movie for a fraction of the cost of a studio production. How much is it costing to make "Star Trek Beyond"? $100 million? $150 million?So, yes, I think Paramount thinks it's being harmed by the publicity for "Axanar"... though Paramount is creating more publicity with the lawsuit and the now silly list of words they think are copyrighted.

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Well I suppose I could make a case for some egotistical control freaks having lost some creds amongst their close circle of friends due to their shameful display of the appearance of a lack of control over things that need no control, if they let the fan flick go unchallenged. That it might have helped their bottom line is of no importance. It's control that is important. And Hollywood accounting.

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You can't show how that matters, legally speaking, of course.

Well, we're not in court here. The question of how the copying work harms the original is of legal relevance, at least in terms of potential impact on the market for the original, which is one of the four factors of fair use. But even outside of that, since copyright contains many gray areas and fair use is a big one, and the whole purpose of fair use is to protect free speech and stop copyright from doing more harm than good, the question of who is harmed by something like this and whether we should want it to be covered by fair use is an important one.

Re: Clearly infringing...

When has this ever actually happened in the history of story telling? Every story is built upon the works of others, either consciously, unconsciously or both.

Even Roddenberry himself admitted that Star Trek was basically a copy of the TV series "Wagon Train", set in outer space instead of the Wild West. He also said that he leaned on Jonathan Swift's Gulliver's Travels for the format that combines an adventure story with a moral message.

Re: Clearly infringing...

Ah, look. It's the same knucklehead who months ago claimed that the very purpose of copyright law is to allow authors that are alive to forcibly remove their prior works from the market to allow the sale of new works.

How's that train of logic working out for you, aside from having it laughed out of legal circles?

I have to wonder why SyF's "Magicians" about wizards in Uni doesn't get attacked by "Harry Potter" and company. Wizards in school or Magicians in school.... hmmmm sounds like if Paramount wins this one, then Rowling can go after Magicians... Oh wait science fiction and stories about wizards in school are ages old and many people have a will write stories about them; they are genres and yes Star Trek is its own genre.

Copyrighting a language?

You can claim copyright on a language? Really? Can you imagine Tolkein claiming copyright on the numerous languages he made for Middle-earth? How about the creator(s) of Esperanto claiming copyright? Maybe Egypt can claim copyright on hieroglyphics next, or Rome can claim it on Latin. It's beyond absurd.

The 'making money' from someone else's link doesn't fly, because once this is settled, EVERYONE will be making money...

If they go after one production, they need to go after another. The people over at Stargate Productions would be a bit of a tougher chew if Paramount and CBS think is even legal. Paramount and CBS will have to go after them, because they've been using, or were using similar "Terminology" for fifteen years. Paramount and CBS will have to go after the creators of the Stargate Literature, and Comics, not to mention they will need to ̶c̶i̶t̶e̶ sue Stargate television and films Productions... Stargate, Stargate: The Ark of Truth; Stargate: Continuum. All the Television series, Stargate: SG-1, Stargate: Atlantis, and Stargate: Universe; the Animated series, Stargate: Infinity; the Game, Stargate: Resistance. These productions - every one of them, sets a precedent! They are the biggest, and most best I could possibly give as an example, and yes, I am aware of the other sci-fi productions, that I am also a big fan of, that could also be listed here. In their own ways, they are / were very successful productions.

I should also say that Gene Roddenberry wasn't the actual creator of a fair amount of the terminology being argued over - it's a fairly comprehensive filing.

It's in keeping with the Tolkien suit over the word Hobbit. He didn't actually create the word, and definition (he did say so himself), but dictionaries admonish him as creator (~1933?); though still not copyrightable... he he he :)

Hundreds of people enjoyed the concept of being part of history and creating something bigger than themselves through 'crowdfunding'. Paramount and CBS are now trying to kill the very idea; creative concept, brought to life, by grasping at some very thin thread.

When the Internet was Young

Everyone was a bit euphoric when the internet happened. Lots of people were interested in learning html so they could post their story and pictures and then links to ads they could even get paid for. But if you didn't see the internet as a blank canvas that would soon be ravaged by the lawyers and over-regulated by the governments, and soon after assaulted by corporations, then you were probably just a little too caught up in the moment. Its barely 20 years on now and look how screwed up it is already. ;o)